ALJDEC decisions subject to certification as final

24F-202300482-DEN · Board of Dental Examiners · 2025-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Robert Craig Janisse, DDS,

Holder of License No. D008564

For the Practice of Dentistry

In the State of Arizona

Respondent.

No. 24F-[number redacted]-DEN

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 7, 2025, and January 10, 2025, with the record held open until February 5, 2025.

APPEARANCES: Assistant Attorney General Seamus Monaghan, Esq. appeared on behalf of the Arizona State Board of Dental Examiners with Dr. Julie Cutler, Dr. Kenneth Reed, and Reporting Source (“KH”) as witnesses. Mandi J. Karvis, Esq. appeared on behalf of Robert Craig Janisse, DDS with Patient (“AR”), Elsa Shiels, Tara Miguel, and Cecelia Binford as witnesses. Teresa A. Watson (CCR No. 50876) served as the Court Reporter for these proceedings.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: State’s Exhibits 1 to 15; Respondent’s Exhibits 2 – 5.

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Executive Director of the Arizona Board of Dental Examiners.

FINDINGS OF FACT

Background and Procedure

The Arizona Board of Dental Examiners (“Board”) has authority to regulate and control the practice of dentistry and dental hygiene in the State of Arizona. The Board is charged with enforcing the provisions of the Dental Practice Act, Ariz. Rev. Stat. § 32-1201 et seq.

Respondent is the holder of License No D008564, issued by the Board on August 14, 2012, for the practice of Dentistry in the State of Arizona. Respondent has also held a permit to administer conscious sedation issued pursuant to Ariz. Admin. Code R4-11-1302 (“1302 Permit”) since 2013.

On November 16, 2023, the Board received a complaint from KH, a registered dental hygienist, regarding Respondent. The summary of allegations were set forth as follows:

On November 7, 2023, my boss, [Respondent] was performing IV sedation on a patient [AR]. The procedure was an all-day sedation that included removing all of his remaining natural teeth and an older implant. He struggled removing the implant and left the operatory and grabbed a pair of rusty channel locks from his tool box. He used them in the patient’s mouth and made the shush sign to his assistant. I was unaware of this until the end of the day when all of the staff, except our office manager (who was working remotely) came in to help assistant clean up the mess. I called my office manager after I got home and told her what happened. She attempted to talk with him to get him to admit it but he just said that the case was very difficult. He is scheduled to do more surgery on the patient on the 30th. I have resigned my position.

On December 26, 2023, a Notice of Complaint was sent to Respondent which informed him of the complaint. A subpoena requesting all medical records for AR was included. The notice advised Respondent that an investigator would be assigned to the case.

Respondent sent the Board the requested medical records dating from June 10, 2021, through January 4, 2024. In addition, Respondent sent approximately 42 patient images and radiographs to the Board.

At the Board’s August 6, 2024, Investigative Committee meeting, the agenda consisted of a review of Respondent’s Case No. [number redacted] with the substantiated allegations of (1) using a non-sterile, non-dental instrument to perform oral surgery and (2) non-compliant to 1302 sedation permit record keeping and standard requirements. The recommended discipline required (i) completion of four hours of continuing education (“CE”) in risk management; (ii) completion of three hours of CE in management of medically complex patients; (iii) completion of three hours of CE in infection control; (iv) 12 months of probation or suspension based on the Board’s determination; and (v) completion of 30 hours of CE in parenteral sedation to include patient selection, drug administration, monitoring, and emergency preparation which included suspension of Respondent’s 1302 permit until completion of all CEs in parenteral sedation.

On October 25, 2024, the Board conducted a meeting whereby Respondent’s case was on the agenda. Respondent did not appear at this Board meeting due to a family emergency in Flagstaff, Arizona.

On October 28, 2024, the Board ordered that Respondent’s license to practice dentistry in the State of Arizona, License No. D008564 was Summarily Suspended and notified Respondent that the Board would refer this matter for hearing before an Administrative Law Judge with the Office of Administrative Hearings (“OAH”). In addition, the suspension remained in effect until after the conclusion of the OAH formal hearing and a final decision and order was issued by the Board.

On November 19, 2024, the Board issued a Complaint and Notice of Hearing (“Complaint”) for Case No. [number redacted] alleging that Respondent’s actions constituted unprofessional conduct and grounds for disciplinary action pursuant to Ariz. Rev. Stat. § 32-1201.04(14) (“Committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public”), and Ariz. Admin. Code R4-11-1302(E)(1) (“Failing or refusing to maintain adequate patient records”). Respondent was further advised that the aforementioned alleged conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license, pursuant to Ariz. Rev. Stat. § 32-1263(A)(1).

Respondent’s Answer to the Complaint was timely received by the Board. There was no evidence presented that Respondent requested an Informal Settlement Conference prior to the scheduled hearing date.

Because Respondent contested the charges in the Complaint, the Board forwarded the matter to OAH, an independent state agency, for a hearing set on December 19, 2024 at 2:00pm. The hearing was postponed and rescheduled to January 7, 2025 at 9:00am, and for administrative reasons, the hearing was set for a further hearing on January 10, 2025 at 9:00am. The issue at hearing was to determine whether Respondent violated Ariz. Admin. Code R4-11-1302(E)(1) and Ariz. Rev. Stat. §§ 32-1201.01(14), 32-1201.01(24), 32-1263(A)(1), 32-1263.02(E), and 41-1092.11(B) as charged by the Board.

Stipulated Facts

On November 24, 2021, Respondent performed a crown preparation and build-up on tooth no. 30 on AR, a 210-pound, medically compromised patient with high blood pressure and HIV. Respondent administered IV sedation to AR during this treatment.

On August 4, 2022, AR presented to Respondent for upper and lower left quadrant scaling and root planning and the placement of fillings in teeth nos. 10, 14, 18, 20 and 21. Respondent administered IV sedation to AR during this treatment.

On November 7, 2023, AR presented to Respondent for the extraction of teeth nos. 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, and 15; bone graft placement in the extraction sites; implant placement in teeth nos. 3, 4, 7, 10, 12, 13, 14, and 15 sites; the removal of the implant in the tooth no. 9 site with bone graft placement, and upper right and upper left alveoplasty. Respondent administered IV sedation to AR during this treatment. During this treatment, Respondent had difficulty removing the implant from tooth no. 9.

Respondent reported to the Board’s investigator that during AR’s treatment on November 7, 2023, an instrument slipped and poked Respondent’s finger and he stepped away to wash his hands as AR was HIV positive.

On December 27, 2023, AR presented to Respondent for the extraction of teeth nos. 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31; bone graft placement in the extraction sites; placement of implants in the teeth nos. 19, 21, 23, 26, 29, and 30 sites; lower right and lower left alveoplasty, and upper and lower denture reline. Respondent administered IV sedation to AR during this treatment.

The Board’s investigator requested Respondent submit evidence of cardiopulmonary resuscitation (“CPR”) and/or advanced cardiac life support (“ACLS”) certification for Respondent and his dental assistants who were monitoring AR during sedation. Respondent did not submit any documentation at the time it was requested.

The standard of care requires a dentist to use sterile instruments when performing treatment in a patient’s oral cavity.

The standard of care requires a dentist to have the proper instruments available to perform dental surgical procedures, especially when a procedure is done on a patient under IV sedation.

The standard of care requires a dentist who is treating a patient under IV sedation to remain with the patient and continuously supervise the patient from the initiation of the IV sedation until the termination of the sedation.

The standard of care requires a dentist with a 1302 permit to administer sedation consistent with the scope of the permit.

The standard of care requires a dentist to inform a patient of an incident that occurs during treatment that may create the potential for cross-contamination.

As a 1302 Permit holder, Respondent was required to maintain a sedation record for every patient who received IV sedation including pre-operative, intra-operative, and post-operative pulse oximeter documentation and pre-operative, intra-operative, and post-operative blood pressure and vital sign documentation.

Pursuant to Board rule, a 1302 permit holder is required to employ at least one staff member holding a current course completion confirmation in CPR health care provider level.

At the Board’s October 25, 2024, regular meeting, the Board reviewed this matter, including the consultant’s report and the accompanying investigative documentation. Neither Respondent nor counsel for Respondent were present to answer questions from the Board. The Board moved to summarily suspend Respondent’s license to practice dentistry pending a formal hearing for revocation, after finding that Respondent’s conduct constituted a danger to public health, safety, and welfare that required the Board to take emergency action.

Hearing Evidence

At the hearing, the Board presented testimony from Dr. Julie Cutler, Board Consultant; Dr. Kenneth Reed, Expert Witness Dentist Anesthesiologist; and KH, Registered Dental Hygienist and Reporting Source. Respondent presented testimony from Robert Craig Janisse, DDS; Patient AR; Elsa Shiels, Dental Assistant; Tara Miguel, Dr. Janisse’s Assistant; and Cecelia Binford, Registered Dental Hygienist. The substantive facts of record are as follows:

Background

AR had been a patient of Respondent for approximately three years.

AR spoke with Respondent over the years about his teeth and how he wanted to pull them all out due to the cavities and pain he dealt with his whole life. For instance, one year AR had nine cavities and it was always difficult for AR to drink cold water or hot tea. More recently, the medication AR took for his health condition further deteriorated his teeth. Respondent described the negatives of removing his natural teeth, especially at his age which was around 53 years old at that time. AR told Respondent that, if he did not perform the procedure, he would go to someone else. Ultimately, Respondent agreed to perform the procedure.

Treatment on November 7, 2023

Respondent testified that, during the treatment on November 7, 2023, while he was extracting some teeth, a dental tool called an “elevator” was bloody due to its assistance in the extraction. The elevator tool slipped and pierced Respondent’s thumb while his hand was in AR’s mouth. Respondent became worried because of AR’s HIV status. Respondent testified that he experienced a “personal medical crisis.” Respondent saw the blood in his glove, left the operatory, went to the adjacent room, and washed his hands. While he washed his hands, he saw his tool box that included a pair of channel lock pliers beneath the sink. When Respondent went to the adjacent room, an assistant was with AR that entire time. At that point, Respondent went back to work on AR’s teeth, however, the crown on AR’s front tooth, no. 9, which was an implant, would not come off with the extraction forceps and kept “slipping.” Respondent testified, “I started trying to think outside the box. . . . I decided to use those Channel locks.” Respondent further testified that his intent was to try to get the crown off tooth no. 9 but after attempting for “[1]0, 15 seconds before I came to my senses and said, God, what am I doing? And I threw them behind me, and that’s where they lay.”

When asked if Respondent recalled giving his assistant the “shush” motion to be quiet about the channel locks and did he make that motion to her, he stated, “I don’t think so. I don’t recall doing it. Put it that way.”

The Board argued that the use of a non-sterile instrument was a deviation from the standard of care. Dr. Cutler testified that the potential for harm was high for cross-contamination, especially for a patient that was “medically compromised.” Respondent testified, “If I’m being honest, I have no idea why I grabbed those pliers. I don’t know at this point. It was, it was a bad choice. I will acknowledge that.”

Respondent did not tell AR about the incident right after the surgery because AR was still under anesthesia and that was not the proper time. Approximately one week after the November 7, 2023, procedure, AR came back to the office to look over a denture and Respondent spoke with AR privately about using the non-sterile tool to attempt to remove the crown. AR told Respondent that he trusted him and wanted him to finish the procedure. From start to finish, this procedure took approximately one year and AR testified that “it was one of the best things that happened to me in my life to get my teeth done.” AR testified that he did not develop any adverse effects or infections related to the November 7, 2023, procedure.

Overtreatment

The Board argued that most of AR’s teeth were healthy and salvageable and that treatment of AR was overtreatment because it was not the standard of care to conduct treatment simply because a patient requested that it be done. Dr. Cutler agreed with the Board’s determination. Also, Dr. Cutler testified that Respondent should have had a “longer conversation with [AR] about what goes on when all of his natural teeth are gone and replaced with artificial ones.”

Sedation Procedures

Dr. Reed explained the differences between the 1301, 1302 and 1303 permits, “A 1303 permit is the lowest level. That is oral sedation. So that’s pills. A 1302 permit is the next level up, and it is to put – to allow the doctor to provide IV moderate sedation. And then a 1301 is a general anesthesia permit. So the one covers two and three. The 1302 covers one, two and three.” Dr. Reed has had a level 1301 permit since around 1996.

The Board provided testimony regarding Ariz. Admin. Code R4-11-1302(H) which states in part that the Section 1302 Permit holder shall continuously supervise the patient from the initiation of parenteral sedation until termination of the parenteral sedation procedure and oxygenation, ventilation, and circulation are stable. Dr. Reed testified that in his experience “I would say in the room would be a good concept for continuous supervise.”

Ms. Shiels testified that during the procedure on November 7, 2023, she served as second chair. She testified that someone constantly monitored the patient’s vital signs and the saline drip. In addition, Ms. Shiels testified that she had her CPR and automated external defibrillator (“AED”) certifications and renewed them while she was employed at the practice. Ms. Shiels contended that it was customary that Respondent did not leave a patient during IV sedation.

Respondent acknowledged that he stepped into the adjoining room twice during the procedure, once to wash his hands and another time to grab a tool; he quickly returned; and the patient remained under supervision/observation during this time.

Parenteral Sedation Record-Keeping

The Board argued that Respondent’s record-keeping had an insufficient amount of information regarding the vitals and did not include the necessary elements per Ariz. Admin. Code R4-11-1302(E). In particular, the Board focused on records/logs from August 4, 2022; November 7, 2023; and December 27, 2023; Respondent agreed that he did not record intraoperative vital signs as required by the rule and that he was “remiss in doing that.” However, on each record the pre-operative and post-operative vitals are present.

CONCLUSIONS OF LAW

The Board has jurisdiction over the subject matter hereof and over Respondent, holder of license no. D008564 for the practice of dentistry in the State of Arizona pursuant to Ariz. Rev. Stat. § 32-1201 et seq.

The Board may issue an order summarily suspending Respondent’s license pending formal proceedings pursuant to Ariz. Rev. Stat. §§ 32-1263.02(E) and 41-1092.11(B), if the Board makes a finding that it is imperative that it take emergency action to protect the public health, safety, and welfare of the state and incorporates that finding into their motion.

The Board bears the burden of proof to establish that Respondent committed unprofessional conduct that furnishes cause to discipline his license to practice dentistry in the State of Arizona by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Ariz. Rev. Stat. § 32-1201.01 defines “unprofessional conduct” to include, in pertinent part, the following:

14. Committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public. . . .

24. Failing or refusing to maintain adequate patient records.

Ariz. Admin. Code R4-11-1302(E) requires the following:

A Section 1302 Permit holder shall keep a parenteral sedation record for each parenteral sedation procedure that:

1. Includes the following entries:

a. Pre-operative, intra-operative, and post-operative pulse oximeter documentation;

b. Pre-operative, intra-operative, and post-operative blood pressure and vital sign documentation . . . .

Pursuant to Ariz. Rev. Stat. § 32-1201(13) defines “disciplinary action” to mean the following:

Regulatory sanctions that are imposed by the board in combination with, or as an alternative to, revocation or suspension of a license and that may include:

Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

Imposition of restrictions on the scope of practice.

Imposition of peer review and professional education requirements.

Imposition of censure or probation requirements best adapted to protect the public welfare, which may include a requirement for restitution to the patient resulting from violations of this chapter or rules adopted under this chapter.

Ariz. Rev. Stat. § 32-1263.01(A) provides that the Board may take any one or a combination of the following disciplinary actions against any person licensed under the chapter:

1. Revocation of license to practice.

2. Suspension of license to practice.

3. Entering a decree of censure, which may require that restitution be made to an aggrieved party.

4. Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party.

5. Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

6. Imposition of a requirement for restitution of fees to the aggrieved party.

7. Imposition of restrictions on the scope of practice.

8. Imposition of peer review and professional education requirements.

9. Imposition of community service.

Pursuant to Ariz. Rev. Stat. § 32-1263(A)(1), the Board may impose disciplinary action against a dentist for any unprofessional conduct as defined in Ariz. Rev. Stat. § 32-1201.01.

The weight of the evidence presented established by a preponderance of the evidence that the State of Arizona holds all dentists licensed by the Board to the same standard of care. Above all else, the benefit of treatment must outweigh the associated risks. All licensed dentists must apprise themselves of, and be held responsible to, the State’s Dental Practice Act.

The Tribunal is tasked with determining whether Respondent committed unprofessional conduct and/or deviated from the standard of care based on the evidence presented, and if so, whether Respondent caused potential and/or actual harm to a patient as a result. To that end, the Tribunal must determine if one or more statutory violations occurred and whether grounds exist for the Board to discipline Respondent’s license to practice dentistry.

In this case, the substantive facts of record are clear. The Board established by a preponderance of the evidence that the conduct and circumstances described in the foregoing factual analysis constituted unprofessional conduct as defined in Ariz. Rev. Stat. § 32-1201.01(14) and (24) and Ariz. Admin. Code R4-11-1302(E)(1). The Board also established grounds to take disciplinary action against Respondent’s license pursuant to Ariz. Rev. Stat. § 32-1263(A)(1).

Weighing the gravity of Respondent’s conduct against the Board’s interest in protecting the public, and taking into account Respondent’s willingness to be regulated, educated, trained, and monitored, the undersigned Administrative Law Judge finds that revocation is not warranted in these circumstances.

The evidence that supports this recommended outcome is as follows. First, AR’s testimony was profound and persuasive and although there was the potential for harm to AR, he was not harmed. In fact, he advocated for Respondent to be able to continue to serve the residents of Northern Arizona. Second, no evidence was provided that Respondent had been disciplined in the past, which could impact a determination as to whether he could successfully be regulated. Third, Respondent was forthright with AR after the November 7, 2023, procedure. Therefore, due to the evidence listed and other reasons, the “nuclear option,” as counsel identified in both of their closings is not warranted here. The recommended discipline will hopefully make Respondent a better practitioner.

RECOMMENDED ORDER

Based on the foregoing,

It is Recommended that the Board rescind its order summarily suspending Respondent Robert Craig Janisse’s License No. D008564.

It is Further Recommended that on the effective date of the Final Order in this matter, Respondent Robert Craig Janisse’s License No. D008564, shall be placed on probation for a period of twelve (12) months pursuant to Ariz. Rev. Stat. § 32-1263.01(A)(2).

It is Further Recommended that, consistent with the Board’s August 6, 2024 Investigative Committee meeting, within six (6) months of the effective date of the final order, Respondent shall be required to provide to the Board acceptable written proof that he has completed (i) four hours of CE in risk management; (ii) three hours of CE in management of medically complex patients; and (iii) three hours of CE in infection control. Furthermore, Respondent must complete 30 hours of CE in parenteral sedation to include patient selection, drug administration, monitoring, and emergency preparation including suspension of Respondent’s 1302 permit until completion of all CEs in parenteral sedation.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, February 25, 2025.

/s/ Nicole Robinson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Mandie Karvis

Wicker Smith O'Hara McCoy & Ford

1 North Central Ave, Ste 885

Phoenix, AZ 85004

[email redacted]

Seamus Monaghan

Office of the Attorney General

Licensing & Enforcement Section

2005 N. Central Avenue

Phoenix, AZ 85004

[email redacted]

Robert Craig Janisse, DDS

2615 N 4th St, Suite 6

Flagstaff, AZ 86004

[email redacted]

Ryan Edmonson

Board of Dental Examiners

1740 W Adams, Suite 2470

Phoenix, Arizona 85007

[email redacted]

By: OAH Staff